Mothering as a Reproductive Right

For the first time in the history of U.S. prisons, there are growing and unprecedented numbers of mothers behind bars. They are not drug kingpins, murderers, arsonists, or violent felons. They are non-violent offenders.

Since 1986, following the introduction of mandatory sentencing to the federal drug laws in the mid-1980s, and its adoption by many states at about the same time, the number of women in prison has risen 400 percent, according to a recent Department of Justice report, "Survey of State Prison Inmates;" for Black women, the figure is 800 percent. Most are mothers to minor children.

Many of these mothers are suffering from untreated addiction, and too many tried to find help but were turned away from the doors of treatment programs because they were pregnant or refused to leave their children behind (most treatment programs do not allow children to be part of the recovery process). Like most mothers struggling with addiction, their addiction to crack, meth, or heroin began with the need to self-medicate from the trauma of being subject to repeated incidents of sexual violence.

What does it mean then that most of our female prison population comprises mothers, and mothers with histories of sexual violence and addiction? How is it that our approach to maternal addiction and the trauma of gendered violence is circumscribed to criminalization and to the removal of children from their mothers? What are the implications for our children of being removed from their mothers, often at birth, because of the criminalization of mothers for untreated addiction? Where is the reproductive rights community in the overincarceration of mothers and the almost systematic severance in the mother and child relationship as a result of maternal incarceration?

These difficult questions regarding maternal addiction and incarceration are often allayed by constructing the women as unfit to mother, or casting them outside the magic circle of motherhood and the sacred mother-child bond. Nonetheless, generally, mothers suffering from addiction want to be good mothers, and their children want to be with them. Hence, when mothers are afforded access to family-based treatment services where they can heal with their children, their average success rates are 62% and rise as high 98% in model family treatment programs. The family heals, stabilizes, and thrives together as a whole family unit. Alternatively, when children are separated from their mothers, they are vulnerable to attachment disorder, substance abuse, and involvement in the criminal justice system. The child welfare system is laced with painful stories of children running away from their foster care placements to be with their mothers, or police being called by child welfare workers in order to physically remove children, sometimes through handcuffing them, from their mothers.

The difficult realities of mothers and children being torn apart from one another are especially traumatic in the context of maternal incarceration. Children are rarely able to visit their mothers behind bars since most female correctional facilities are located in isolated areas and kinship caregivers are unable to travel the distance, or child welfare workers are unwilling to make the strenuous journey. The children who are able to visit their mothers are often subject to excessive body searches and denied the chance to even touch their mothers during the visit.

The condition of mothers giving birth behind bars is equally difficult. Babies are removed from their mothers within a 24 hour period after their birth and placed into foster care. Babies born to mothers behind bars are often born to mothers who labored and gave birth to them while in shackles. In our federal prisons and most state prisons, restraints are routinely used on pregnant women when they are in labor and when they give birth. Only 2 states have legislation regulating the use of restraints on pregnant women: Illinois and California. In the other 48 other states, the District of Columbia and the Federal Bureau of Prisoners, no such laws exist. This routine use of restraints on pregnant women, particularly on women in labor and giving birth, constitutes a cruel, inhumane and degrading practice that rarely can be justified in terms of security concerns during the delivery process.

It shouldn't be this way.

Mothers and their children should have access to family-based treatment programs; alternative sentencing to therapeutic, family programs should be considered instead of maternal incarceration; and sentencing reform that recognizes the distinct conditions and responsibilities of mothers as the primary caretakers should displace the gender neutral sentencing guidelines that are, in part, responsible for the surge in mothers behind bars.

Our reproductive rights community has yet to be a voice for mothers behind bars, or a voice against the disproportional removal of vulnerable children from the care of their mothers. Whereas our mainstream reproductive movement has addressed women's right to choose what happens to our bodies and our right to choose when to be a mother, low-income women of color are routinely denied the basic right to be mothers. The parameters of reproductive health and rights discourse must be expanded to also include the very right to mother and to raise one's children with dignity and healing. Otherwise, we are in danger of playing out what we correctly criticize the pro-life community for doing — only demonstrating concern for the fetus.

You have exposed a hidden cruelty that we in the reproductive rights movement must address.
Many women, if not most, go to prison today on drug-related charges. In some cases, federal prosecutors lock them away for years because the women are so low-level in the drug trade that they literally have no one to “give up” to make a deal with the prosecutors. It is not unknown for women to go to prison simply for taking phone messages for a drug-dealing boyfriend or husband.
To be female in the American criminal justice system is the epitome of powerlessness. What happens to incarcerated pregnant women is simply unconscionable.